July 20, 2019

Jury Finds User Liable for Downloading, Awards $9250 Per Song in Damages

The first Recording Industry v. End User lawsuit to go to trial just ended, and the industry won big. Jammie Thomas, a single mother in northern Minnesota, was found liable for illegally downloading 24 songs via Kazaa, and the jury awarded damages of $222,000, or $9250 per song. It’s always risky to extrapolate much from a single case – outsiders, schooled by TV courtroom dramas, often see cases as broad referenda on social issues, while in reality the specific circumstances of a case are often the decisive factor. But with that caution in mind, we can learn a few things from this verdict.

The industry had especially strong evidence that Thomas was the person who downloaded the songs in question. Thomas’s defense was that somebody else must have downloaded the songs. But the industry showed that the perpetrator used the same distinctive username that Thomas admitted to using on other services, and that the perpetrator downloaded songs by Thomas’s favorite performers. Based on press stories about the trial, the jury probably had an easy time concluding that Thomas downloaded the songs. (Remember that civil cases don’t require proof beyond a reasonable doubt, only that it was more likely than not that Thomas downloaded the songs illegally.)

People often argue that the industry has only weak evidence when they send their initial settle-or-else demand letters to users. That may well be true. But in this case, as the trial loomed, the industry bolstered its case by gathering more evidence. The lesson for future cases is clear. If the industry has to go to trial with only the initial evidence, they might not win. But what end user, knowing that they did download illegally, will want to take the chance that more evidence against them won’t turn up?

The most striking fact about the Thomas case is that the jury awarded damages of $9250 per song to faraway corporations.. That’s more than nine hundred times what the songs would have cost at retail, and the total of $222,000 is an astronomical amount to a person in Jammie Thomas’s circumstances. There is no way that Jammie Thomas caused $222,000 of harm to the record industry, so the jury’s purpose in awarding the damages has to be seen as punishment rather than compensation.

My guess is that the jury was turned off by Thomas’s implausible defense and her apparent refusal to take responsibility for her actions. Litigants disrespect the jury at their peril. It’s easy to imagine these jurors thinking, “She made us take off work and sit through a trial for this?” Observers who hoped for jury nullification – that a jury would conclude that the law was unjust and would therefore refuse to find even an obvious violator liable – must be sorely disappointed. It sure looks like juries will find violators liable, and more significantly, that they can be convinced to sympathize with the industry against obvious violators.

All of this, over songs that would have cost $23.76 from iTunes. At this point, Jammie Thomas must wish, desperately, that she had just paid the money.

Comments

  1. a little correction:

    This case is not about Jammie Thomas downloading songs, it’s about Jammie Thomas offering songs for other users to download (the were in the Kazaa share folder). We don’t know if someone really did download those songs from there. There are no evidences for that. Simply offering the songs was enough to successfully sue her.

    Technically spoken, you automatically share (and probably upload) the files you download from a peer-to-peer filesharing network. This is unavoidable, it’s how peer-to-peer works. I’m sure many users of P2P-networks aren’t aware of this fact.

  2. For copyright infringement we need:
    1) A copyrighted work
    2) An unauthorised copy
    3) A copyright holder who can demonstrate ownership of the copyrighted work
    4) The person who manufactured the unauthorised copy

    The trouble is, the jury are quite comfortable believing themselves to be copyright infringers so are quite comfortable in finding the defendant guilty of copyright infringement – without incontrovertible evidence for each of the above.

    What the jury is most uncomfortable to even countenance is that copyright is inherently unethical.

    ‘Not their problem’

  3. Crosbie,

    “Incotrovertible evidence” was not required. Civil cases like this require a lower standard of proof, “preponderance of the evidence”, which basically means it is more likely than not that the defendant violated the law. Some people call it a 51% standard of proof.

    And given the verdict, especially the damages, the jury apparently had no ethical problem with enforcing copyright.

  4. That’s a substantial amount of money — when was the last time you heard of a corporation being successfully sued for an integer multiple of their yearly revenues? (Pennzoil vs. Texaco, maybe). This woman could become the poster child for tort reform.

    Did the RIAA show damages? If you take iTunes retail pricing as a guide, that’s 10000x the price of the songs. A 10000x share ratio for those songs would require that she upload around a terabyte of data (and it can be done with DSL or cable, but it takes months of running P2P around the clock).

  5. Copyright law has statutory damages, which means that an infringer can be required to pay damages up to a certain amount even without a showing that the plaintiff suffered any specific amount of harm. The jury had discretion to award up to $150,000 per song in damages.

  6. To what extent do they argue for “transitive damages”? For example, if someone downloads a song, which is then made available via their P2P program, and then uploads it to 10 people. Those 10 people in turn could upload to 10 more people each. Does the law include any of the damages of enabling others to engage in copyright infringment?

  7. Ed, I was trying to demonstrate both points you make with respect to my comment:

    1) Not only didn’t they need incontrovertible evidence, they were clearly quite comfortable without it.

    2) They were also clearly quite comfortable to ignore the ethical aspect.

    I am suggesting that the problem is precisely that the jury is UNCOMFORTABLE to even consider the ethics of the case (they’d probably send Jesus to the cross and we’d spend the next couple of millennia wondering why they didn’t have it within themselves to ignore the law).

    I wonder if we can do anything to make future juries be a little more comfortable about questioning whether this woman truly deserved a $200,000 fine for doing something all good human beings have done for aeons.

    Freely share art with all mankind.

  8. What kinds of questions were asked of prospective jurors during the jury selection process? For more serious crimes that the average person has never committed, this part of the process will generally exclude the ones who have. But for things like minor traffic violations (which can and sometimes do go to jury trials) you’d have a tough time fielding a jury of citizens who have never committed the acts they’re judging others on.

    And were does file sharing of copyrighted music land on this spectrum? What kinds of questions were the jurors asked about their own music copying and file sharing practices while the jury was being selected? I don’t know, and if anyone does, I think it would shed some light on the outcome of the trial. I’d be willing to bet that well over half of all adults have engaged in acts that RIAA would label as music piracy, some of whom do so routinely and don’t think much of it, but if all of those were eliminated from the jury pool you can bet it probably skewed the outcome of the trial.

  9. What bothers me the most about this is the concept that a copyright violation occurs if the user makes a file available. Even if no one downloads the file, the user is still liable. This just seems wrong.
    I realize that there is precedent, but it’s a pretty shaky precedent. Wonder how long before it applies in other ways? For instance:
    I go to the store, and because I’m only gone for 10 minutes, I leave my house unlocked. While I’m gone, someone comes in and steals my music CDs. According to this precedent, I’m the one liable because I “made the CDs available for others to steal”.
    Or I’m a dummy and haven’t turned off the wireless access in my new router…someone war drives in and steals my ripped CDs…again, according to this precedent, I’m the one liable, not the thief.
    Sadly, laws are made by Congresscritters, and tend to favor those with the most money, and copyright law seems to be just exactly that.

  10. What we have here is a re-enactment of the Milgram’s shock experiment, but in a courtroom.

    JUDGE:
    A copyright violation has occurred. If you believe the defendant committed this violation you must find them guilty.

    JURY:
    But, it’s just an ordinary woman enjoying the cultural exchange of music?

    JUDGE:
    Copyright infringment costs the industry billions of dollars. You must uphold the law

    JURY:
    Ok. She’s guilty!

    JUDGE:
    Good. You must now determine costs. For commercial scale violations one would recommend $250,000 per infringement, but in this case it is suggested $10,000 will be sufficient.

    JURY:
    Are you sure that won’t still completely bankrupt her?

    JUDGE:
    This is lenient as it would be reparation for a fraction of the damage she has caused. You must set an appropriate amont.

    JURY:
    Ok. $9,250.

    JUDGE:
    Excellent. You are good citizens indeed.

    DEFENDANT:
    Don’t worry jurors. It was a set up. The RIAA are paying me $300,000 for being a patsy.

  11. Mark Christiansen says:

    Statutory damages are excessive and unjust.

  12. Had she never answered the complaint, what would have been the amount of the default judgment in this particular case likely have been?

  13. Per Jonsson says:

    The industry is doing a great job of contribute to the popularity of the Pirate Parties all over the world. Even the old media is taking up the story and are “shocked”.

  14. It’s very important to remember that people who are activists on this issue are not the whole of the public – PR campaigns we may regard as laughable might actually have an effect on real juries.

  15. Attractive Nuisance says:

    I’m curious about how such a judgement, assuming no appeal (or one that is lost), will actually impact Ms. Thomas’ life seeing as how there is no way she can pay it. A lot of money was no doubt spent by the industry on this suit, probably at least as much as the amount of the judgement of the so-called “damages” they suffered, and they were certainly aware of this. So, it’s obviously not about the money.

    If some sort of payment plan is set up by the court and she is ordered to pay a given amount (say, a percentage of her income) every month, and is unable to do so without going bankrupt, what then? Being a single mother (and assuming a financial situation typical of single mothers), any reduction in her income might push her over the edge financially, ultimately forcing her into some assistance program, which then places a burden on taxpayers that she would probably have not become otherwise. It will also severely impact her ability to raise her kids, possibly leading to an even higher burden on… you and me.

    It’s as if the industry feels their products are an essential part of our lives that we can’t live without, and we’ll meekly accept doing things their way if they are heavy-handed enough, but over the long term such tactics will push more people into doing what I already do: Go to local venues and listen to independent, live music and support the (unsigned) artists directly! Ultimately, that will cost them more money than what they think they’re losing to infringement and we’ll get to hear better music, more often. Well, here’s to hoping!

  16. Let’s hope the damages against the RIAA in the Anderson case are in proportion,,,,

  17. Joe, this Ars Technica article describes the jury selection process including some of the questioning:

    http://arstechnica.com/news.ars/post/20071002-first-riaa-trial-gets-under-way-with-jury-selection.html

    It does not go into detail about exactly what the answers were for the final jury, but apparently they were asked if they had ever downloaded music; most who had, used iTunes (which would imply that they paid for it). 3 of the 12 jurors do not use computers.

    I think it would have been interesting if the RIAA had sued over all 1,700 songs she was supposedly sharing instead of just 24, and if the jury had awarded maximum statutory damages of $150,000 per song, for a total of $255 million! Thomas probably wouldn’t be any more or less likely to pay it off but it would have been a newsworthy event.

  18. Julie Amero — held responsible for porno pop-ups in a classroom, possibly facing years in jail (been sentenced yet? can’t find the final sentence), claimed she didn’t know what to do.

    Matthew Bandy — found guilty of child porn, claims computer was cracked, Judge was lenient.

    Judge Ronald Kline — found guilty of child porn after Brad Willman admitted to illegally cracking into the Judges computer and then passing information to the police. Got 2 years jail.

    Jammie Thomas — see article above.

    All of them were in a situation where there was at least reasonable suspicion that their computers were tampered with. All were found guilty based on somewhat indirect and/or tainted evidence. All of them were in a position where it is unlikely they were in control of their computers.

    Conclusions:

    [1] Standard of proof is pretty low

    [2] Being a n00b is no excuse

    [3] If you are connected to the Internet, you need all the security you can get

  19. I think what is more important is not this particular case: it was indeed a pretty lame defense and I did not hear any type of “pitch” of why they thought they could win this case to begin with.

    What is much more important is that Record companies are able to get all the data they want from ISP’s etc. In other words the fact they could accumulate this type of data, that Congress etc would not allow for P2P networks to flourish (which they can in many countries outside the USA) and what exactly constitute ownership of a file (making backups, sharing etc).

    Much has been said about this, but it seems all too easy to keep listening to the RIAA lobby and let them just ignore the end consumer. It doesn’t mean everything has to be for free. That is why social networking websites where bands can publish directly, and receive income directly (which feels a lot more gratifying as a consumer) are the way forward.

    In this way.. the RIAA will kill itself in the long run.. except for making money of a few absurd stars..

  20. I would like to add: there is in fact more to this: many bands make most money on tours/concerts. Leaves the RIAA out. If “making money of a band” which seemed to be a one-stop-shop for the record companies in the past is actually “split” into:
    1) concerts
    2) direct sales (through myspace, or their own website)
    3) “merchandising”: say use their tune for a movie, commercial, sell T-shirts whatever

    and more other business models.. you make a record company and the RIAA pretty redundant except for a few of the Hollywood stars where the task is too large to handle themselves..

    So.. what we very well see is that attacking the record companies “head on” with P2P technologies (which were seen as a paradigm shift) may not have been the “answer” but a myriad of different business models combined MAY.

    Furthermore.. a few thousand lawsuits on a few million file sharers.. is a chance of 1 in… whatever.. just like getting into a car or drinking beer every night.. it may be a newsworthy story but also not for long.. so what will the RIAA achieve with lawsuit nr 100 ? Think about how difficult it is to campaign with people for “drink and drive” , “smoking”, “fasten seatbelt” etc.. in other words deterrence will be almost ZERO.

    All in all I think these lawsuits, however absurd and newsworthy, are basically the last jitters of a business model that is getting more and more outdated.

  21. OK comment 3 (sorry about that): P2P use and other business models are not mutually exclusive.. in fact they can reinforce each other.. thus accelerating change. (If ppl keep swapping files for 0 $ then you NEED other business models.. AND direct sales to consumers who want to pay voluntarily because they sympathize with the band)

  22. Dillon Osborn — found guilty of contacting his ex-wife when Facebook gained access to his address book and sent auto-invites to everyone in the list, served 10 days jail. Same conclusions as above post.

  23. Who are the brain police? – Frank Zappa

    How is this now a question of property is a very strange ruling to my mind. Property is tangible I thought by definition. Are electrons now property? The transference or transubstantiation of property is now invisible and no longer tangible it seems as defined by the law in this excruciating tort and torture has shown in this case. Thumb screws would make more sense in IMHO.

  24. George, property is not necessarily tangible. Information can also be property.

    However what we have here is not a conflict over property, but an infringement of a monopoly.

    The RIAA is prosecuting the Thomas for being involved in the manufacture and distribution of copies without licence by the monopoly holder. It is not saying that originals have been stolen, or that copies have been made of unreleased works.

    As others have observed, the typical penalties for theft of property are orders of magnitude lower than for monopoly infringement.

    The problem is that a monopoly on the reproduction and distribution of copies is no longer actually possible in the digital age. Unfortunately, shooting fish in a barrel with a sniper rifle still is possible – even for a blind old codger with Parkinson’s disease. This doesn’t enforce the monopoly, it just kills one or two fish, stirs the rest of the fish up for a few minutes, and demonstrates the old codger to be a psychopathic moron who’s forgotten that bargains are voluntary and monopolies unethical.

  25. As a songwriter, I am not a fan of the RIAA, nor am I unsympathetic to Jammie Thomas, but I do believe she should have avoided the verdict by settling with the RIAA for a few thousand dollars. According to media accounts, she had been warned previously against her illegal filesharing account, ignored the warning, and replaced her hard drive to conceal the evidence.

    Was the fine excessive? I don’t believe so. Ultimately, I expect the RIAA, after exploiting the news value of this story, will privately arrange a much more tolerable penalty with Jammie, and it’s extremely unlikely that her life will be ruined. The size of the fine was justified by law and precedent for its deterrent effect. Given that the risk of being caught engaged in illegal filesharing is very small, only a large penalty will cause those doing it to be discouraged. In fact, almost certainly, a majority will not be discouraged even by this large an amount, and one could argue for an even larger fine. As a practical matter, though, the RIAA is primarily interested in ensuring that others who are caught are pressured into accepting a settlement rather than going to trial, and this verdict accomplishes that aim.

    It’s important to distinguish between dislike for RIAA business practices and the morality of stealing. Intellectual property is stolen whenever someone makes illegal copies available for distribution, because that reduces an artist’s opportunity to sell the work at a fair price. That is why copyright law exists, as distinct from laws involving theft of material items. Copyrights now extend too long, in my view, but their basic principle is a valid and necessary one.

    Many individuals, myself included, believe that new business models are needed for music as a result of the electronic age, and I would certainly welcome models that awarded more income to artists and less to corporations. Whatever they turn out to be, however, they can’t compete with “free”. That is why I believe that whatever models are developed will need to be accompanied by continued efforts to curtail illegal activities that permit listeners to take music without paying for it from those who had the right to sell it.

    Fred Moolten

  26. There is no “stealing” involved here. And don’t give me that pap about “an artist’s opportunity to sell the work at a fair price”; a fair price is one that is set by competitive markets and is generally not much more than the marginal cost of the good. The laws you defend exist (now, and I suspect always have) to defend a corporation’s opportunity to sell the work at an extortionate price and laugh all the way to the bank when they make 99% profit margins where other businesses must settle for 1% or, if they’re lucky, perhaps 2% (e.g. retail).

  27. Given that the risk of being caught engaged in illegal filesharing is very small, only a large penalty will cause those doing it to be discouraged.

    Yeah, works well to stop drug trafficking, also stops arms dealers, slave traders. With an infinite penalty you could have zero chance of catching anyone and still see genuine deterrence — think of the police time saved!

  28. Fred Moolten said “Many individuals, myself included, believe that new business models are needed for music as a result of the electronic age, and I would certainly welcome models that awarded more income to artists and less to corporations. Whatever they turn out to be, however, they can’t compete with “free”.”

    Actually it is possible to have abusiness model that competes with free – Magnatune has a model that includes “free” as one of the options. The point is this – if I like the music of a particular artist then I am happy to pay them voluntarily – to ensure that they are able to make more. If they are offering their music freely and without restrictions then that creates a really nice feeling (you know what – free music actually sounds better to me!). I think the thing is that you have to trust your listeners – most of them are moral people who don’t want you to starve – as for the others – well just shug your shoulders and hope they feel bad about it.
    True this does require a leap of faith and a risk for those who take that approach – but if you take the risk you can start a “virtuous circle” from which we will all benefit.

  29. You know, the music industry has done a great job of inducing people to spend lots of time and effort into concealing and encrypting communications. Do we really want to do this in a world that includes Al Queda?

  30. Innovate, don’t litigate.

  31. DJ Primate says:

    I think Fred Moolten works FOR the RIAA. What an absurd rationalization!

    Screw the candy coating, a settlement of “a few thousand dollars” is just plain EXTORTION, let alone $9000+ per song.

    Crosbie Fitch hit the nail on the head. It’s all about protecting monopolies. Like Monsanto winning a huge suit against a small farmer whose fields were CONTAMINATED by their filthy GE corn. Again, an absurdly unjust verdict against the “little person” in favor of a monopoly that makes billions.

    An there’s a word for that … a certain political orientation that begins with an “f”…

  32. Fred Moolten said “Many individuals, myself included, believe that new business models are needed for music as a result of the electronic age, and I would certainly welcome models that awarded more income to artists and less to corporations. Whatever they turn out to be, however, they can’t compete with “free”.”

  33. Dillon Osborn — found guilty of contacting his ex-wife when Facebook gained access to his address book and sent auto-invites to everyone in the list, served 10 days jail. Same conclusions as above post.